Originially from: World Arbitration and Mediation Review (WAMR)

PRACTICE & PERSPECTIVE
Court-Annexed ADR — Federal Legislation
TEXT: The Justice Department Advocates Multi-Option Court ADR
Programs
The following is excerpted from the testimony of Paul R. Friedman,
Deputy Associate Attorney General, US Department of Justice, before the
Subcommittee on Courts and Intellectual Property of the House Judiciary
Committee on May 11, 1995, regarding HR 1443, The "Court Arbitration
Authorization Act of 1995" (see page 00 of this issue).
[The Court Arbitration Authorization Act of 1995] would amend the
Arbitration Act (28 U.S.C. §§ 651-58) to make permanent the
experimental arbitration programs established in designated pilot and
comparison districts, expand the Act's coverage to apply to all districts
rather than just the experimental ones, and raise the Act's damages ceiling
for mandatory referral of certain cases to arbitration from $100,000 to
$150,000.
While we support wholeheartedly the idea of providing for an ADR
program in all district courts, we believe that this bill is too restrictive in
its approach to the use of ADR in federal courts. We believe that the scope
of the program should be expanded to include not just arbitration but the
full range of ADR procedures that have been tested and proved valuable.
... It is time to bring the federal courts into the modern era with a far more
expansive commitment to making the full range of ADR techniques
available in all types of litigation.
Problems with the Arbitration Act
Based upon feedback from litigators at both Main Justice and US
Attorneys' Offices throughout the country, the Arbitration Act has yielded,
at best, mixed results. Arbitration is the most resource-intensive and
formal of the ADR tools and the Act's focus on arbitration to the exclusion
of the other available ADR tools, particularly those designed for use early
in the life of a dispute, has often undercut rather than promoted efficient
dispute resolution.
Some of the reasons for this disappointing record have to do with design
flaws that can be corrected. For example, the threat of sanctions under the
Arbitration Act, in the form of costs, arbitrators' fees, and/or attorneys'
fees, discourages litigants from opting-in and encourages them to opt-out.
And the absence of a requirement that parties participate personally in the